Rauph Bello Oseni V. Chief Lasisi Bajulu & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

In the Lagos State High Court, the plaintiff, who is substituted by the appellants who are the respondents in this appeal, instituted an action against the appellant. The plaintiff in the suit claimed possession of the two rooms and a parlour (a chieftaincy family property) at No.1A Bajulu Street, Isale-Eko, Lagos occupied by the defendant as tenant at will. The defendant denied the claim of the plaintiff, but asserted that the property beneficially belonged to his great-grand father Aina Adaba. The parties testified, and one of them called witnesses, after which their counsel addressed the court. The learned trial judge after appraising the evidence before him and the addresses of learned counsel found in favour of the plaintiff as follows:-

“I hold that the plaintiff succeeds and that he is entitled to the said premises. I hereby order that the Defendant shall vacate and give up possession of No.1, Bajulu Street to the Plaintiff on or before the 16th day of October, 1992.”

Dissatisfied with the judgment the defendant appealed to the Court of Appeal on six grounds of appeal. The Court of Appeal found no merit in the appeal, so it dismissed it. Again, the defendant was not satisfied with the outcome of the appeal before the Court of Appeal, so he has again appeal to this court on eight grounds of appeal.

Learned counsel for the parties exchanged briefs of argument, which were adopted at the hearing of the appeal. Two issues formulated in the appellant’s brief of argument are as follows:-

“1 Was the court below right in affirming the judgment of the trial court that the Respondent was entitled to possession of No.1 Bajulu Street, Lagos when the claim of the Respondent was for No.1A Bajulu Street, Lagos.

2. Whether the failure of the court below in re-evaluating the evidence of the Defence witnesses in relation to Exhibit K, the Crown Grant occasioned miscarriage of justice on the part of the appellant.”

Only one issue was formulated for determination in the respondents’ brief of argument. The issues reads as follows:-

“Was the court below not right in affirming the judgment of the trial court that the Respondent was entitled to possession of the premises variously and interchangeably described as No. 1 or No.1A Bajulu Street, Lagos having held that the Respondent also proved his title to the premises.”

The respondent had raised a notice of preliminary objection in their brief of argument, but at the hearing of the appeal, the learned counsel withdrew the preliminary objection, and said his objection on the appellant’s issue No.(2) remains as it is raised in this court for the first time without leave of the court. The learned counsel for the appellant did not deem it necessary to file an appellant’s reply brief of argument to counter argument in the respondents’ preliminary objection.

The uncontested first issue in the appellant’s brief of argument and its overall argument is hinged on the actual description of the property in controversy. The crux of the matter is whether the address of the property is No.1A, Bajulu Street, Lagos, or No. 1 simpliciter. It is on record that the endorsements in the writ of summons contains inter alia:-

“The plaintiff’s claim is for the possession of two rooms and a parlour premises, situate at No.1A, Bajulu Street,….

It is also on record that in their statement of claim the plaintiffs claim read interalia as follows:-

“8. Plaintiff claim possession of the two rooms and a parlour occupied by the defendant at No.1A Bajulu Street, Lagos.”

Then in his amended statement of defence, the defendant made the following denial:-